Shoesmith, R (on the application of) v OFSTED & Ors  EWCA Civ 642 (27 May 2011) – Read judgment
In April 2005, Sharon Shoesmith was appointed as Director of Children’s Services at Haringey London Borough Council. The appointment by a Council of such an officer is a statutory requirement - Children Act 2004 s.18. “Baby P” – who was the subject of a Child Protection Plan put in place by Haringey Social Services – died on 3rd August 2007 aged 17 months.
Those directly responsible for his death were eventually all convicted under the Domestic Violence, Crime and Victims Act 2004 s.5. Their trial, at the Old Bailey, ended on 11th November 2008. To say the least, the trial was followed by a media hue and cry demanding that heads roll.
On 1st December 2008, Mr Ed Balls MP (then Secretary of State for Children, Schools and Families) held a Press Conference at which he said that Haringey would be considering the employment relationship “this afternnon and immediately.” He made it clear that his view was the Ms Shoesmith “should not be rewarded with compensation or pay offs” but “that’s a matter for Haringey.”
On 8th December 2008 she was dismissed without any form of payment in lieu of notice or compensation and her internal appeal against dismissal was rejected on 12th January 2009. In March 2009, Ms Shoesmith commenced judicial review against OFSTED, the Secretary of State and Haringey Council. Judicial review is concerned with the legality of decision-making.
The judicial review was first heard by Foskett J who, after six days of oral argument and later written submissions,dismissed all of Ms Shoesmith’s applications though he did so with a “lurking sense of unease.”
Ms Shoesmith was successful on appeal to the Court of Appeal (Civil Division). The case was heard by Lord Neuberger MR, Maurice Kay and Stanley Burnton LJJ though the principal judgment was handed down by Maurice Kay LJ. A full reading of this is essential - see the judgment. Ms Shoesmith obtained a declaration that he dismissal was unlawful and will be entitled to compensation though the amount remains to be settled – (see Judgment of Maurice Kay LJ at paras. 128-132).
The concluding remarks of Maurice Kay LJ should be noted by all politicians:
I cannot leave this case without commenting on the way in which Ms Shoesmith was treated. In another case, Sedley LJ was moved to say:
“It seems that the making of a public sacrifice to deflect press and public obloquy, which is what happened to the appellant, remains an accepted expedient of public administration in this country. (Gibb v Maidstone & Tunbridge Wells NHS Trust  EWCA Civ 678, (at paragraph 42)”
In my view, it is also what happened in the present case. Those involved in areas such as social work and healthcare are particularly vulnerable to such treatment. This is not to say that I consider Ms Shoesmith to be blameless or that I have a view as to the extent of her or anyone else’s blameworthiness. That is not the business of this court. However, it is our task to adjudicate upon the application and fairness of procedures adopted by public authorities when legitimate causes for concern arise, as they plainly did in this case. Whatever her shortcomings may have been (and, I repeat, I cannot say), she was entitled to be treated lawfully and fairly and not simply and summarily scapegoated.
Another point arises from para. 3 of Maurice Kay LJ’s judgment where His Lordship noted – “It is a feature of the scheme under the 2004 Act that a DCS is likely to be inexperienced in either education or social work.” (Ms Shoesmith was experienced in education but not social work). Perhaps this observation is something which the government might choose to consider.
An appeal to the Supreme Court is under consideration.
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